Virendra Singh vs State of U.P. and Another

U.K. Verma, J.—This is a revision against the order of the X Addl. Sessions Judge, Bulandshahr, refusing to summon Jitendra Singh as an accused at that stage of the trial although as argued by the counsel for the applicant in the examination-in-Chief of Virendra Singh (P.W. 1) there was evidence about his complicity in the crime in question. He cited the cases of Chandra Pal Singh v. State of U.P., reported in 1991 ACC 332, Margoobul Hasan v. State of U.P. and Ram Niwas Vs. State of U.P., to make out his point that nothing should have prevented the trial Judge from summoning Jitendra Singh as an accused and the constraint be felt in this regard was not justified at all.

The counsel for the opposite parties in reply urged that the power with regard to the summoning of a person as an accused by the Court is an extraordinary one and has to be sparingly exercised for compelling reasons. He invited my attention in this connection to the decision of the Supreme Court in Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, and to the decision of Hon''ble Saghir Ahmad, J. in Criminal Misc. Revision No. 141 of 1990, Reported in 1990 UPCR 254 Mohan Lal v. State of U.P. of the Lucknow Bench wherein he had observed that summoning a person without waiting for completion of cross-examination was illegal. The observation of Hon''ble Saghir Ahmad, J. imposing a barrier with regard to the summoning u/s 319, Cr. P.C. does not seem to be in accord with the earlier decisions of this court referred to above. There may be cases where evidence against a person is already there in ample measure and it would be unnecessary waiting for cross-examination of the prosecution witness to conclude for passing the summoning order. All that is really necessary is that there has to be application of mind to the allegations against the person sought to be summoned and the evidence gathered and intended to be led and this satisfaction that there is a prima facie case against him. The X Addl. Sessions Judge intends to take the decision whether to summon or not after the evidence has some what crystallized and the role attributed to Jitendra Singh is clear. This is certainly not an unfair approach and as such the revision is dismissed and the stay order is vacated. The trial may be proceeded with and the decision on the question referred to above may be taken later.